QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Cardiff Civil Justice Centre
B e f o r e :
|THE QUEEN ON THE APPLICATION OF JOHN PLANT||Claimant|
|- and -|
|PEMBROKESHIRE COUNTY COUNCIL||Defendant|
|- and -|
|PRINCES GATE SPRING WATER|
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and Public Law) appeared on behalf of the Claimant
Mr R Taylor (instructed by Claire Incledon, Pembrokeshire County Council Legal & Committee Services) appeared on behalf of the Defendant
The Interested Party did not appear and was not represented
Crown Copyright ©
Mr Justice Hickinbottom:
The History of the Application
Ground 1: The Committee misunderstood and misapplied the relevant local plan.
Ground 2: The third (and effective) EIA screening opinion was inadequate and unlawful in three respects. First, it failed to take into account a relevant criterion, namely the presence of landscapes of historical, cultural and archaeological significance. Second, in respect of various impacts, the EIA screening checklist for the opinion failed properly to apply the statutory test of "likely significant effect". Third, the opinion is irrational and its reasoning unintelligible (and, hence, inadequate), because the screening checklist contradicts the screening opinion itself.
Ground 1: The Local Plan
(i) Section 70(2) of the Town and Country Planning Act 1990 provides that, in dealing with an application for planning permission, a planning authority must have regard to the provisions of "the development plan" (defined by section 38 of the Planning and Compulsory Purchase Act 2004 to include adopted local plans), as well as "any other material consideration". However, the development plan is not just a material consideration like any other. By section 38(6) of the 2004 Act:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
Therefore, section 38(6) raises a presumption that planning decisions will be taken in accordance with the development plan; but that presumption is rebuttable by other material considerations.
(ii) Whilst a planning decision-maker must take into account all material considerations, the weight to be given to such considerations is exclusively a matter for planning judgment for that decision-maker, who is entitled to give a material consideration whatever weight, if any, he considers appropriate, subject only to his decisions not being irrational in the sense of Wednesbury unreasonable (Tesco Stores Ltd v Secretary of State for Environment  1 WLR 759 at page 780F-G per Lord Hoffmann; and Tesco Stores Ltd v Dundee City Council  UKSC 13 at  per Lord Reed). The courts consequently leave such decisions to be made by the appointed decision-makers - who are democratically elected bodies or persons accountable to such bodies - on the basis of guidance promulgated by the Secretary of State, the Welsh Ministers and the local authorities themselves (see, e.g. R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  UKHL 23 at  per Lord Nolan  and  per Lord Hoffmann and  per Lord Clyde); and R (Morge) v Hampshire County Council  UKSC 2 at 366 per Baroness Hale).
(iii) A decision-maker must interpret policy properly, the true interpretation of policy being a matter of law for the court (Tesco v Dundee at - per Lord Reed)). Where a decision-maker has misunderstood or misapplied a plan or policy, that may found a challenge to his decisions, if it is material, i.e. if his decision would or might have been different if he had properly understood and applied the guidance.
(iv) However, development plans set out broad policy guidelines, often framed in language that requires the exercise of judgment when applied to any particular set of facts. The exercise of judgment inherent in such policy is, like any matter of planning judgment, for the relevant planning authority; and can only be challenged on the ground that it is irrational or perverse.
(v) Whether a proposal is "in accordance with the plan" for the purposes of section 38(6) will depend on all the circumstances of the particular case, which itself requires an exercise of judgment within the realm of the planning authority (R (Cummings) v Camden London Borough Council  EWHC 1116 (Admin) at - per Ouseley J). Almost inevitably, any planning application will engage a number of policy strands, which may well not pull in the same direction, or indeed may well clearly pull in very different directions. Those circumstances were helpfully considered recently by Lewison LJ in R (TW Logistics) v Tendring District Council  EWCA Civ 9 at . After considering the relevant passage from Lord Reed's judgment in Tesco v Dundee, he said that it had two consequences for the case before him, which are relevant also to this case:
"First, we must not adopt a strained interpretation of the Local Plan in order to produce complete harmony between its constituent parts. Second, we must be wary of a suggested objective interpretation of one part of the Local Plan as having precedence over another. In a case in which different parts of the Local Plan point in different directions, it is for the planning authority to decide which policy should be given greater weight in relation to a particular decision. This, in my judgment, is established by the decision of Ouseley J in [Cummins]…. In that case Ouseley J said (at ):
'It may be necessary for a Council in a case where policies pull in different directions to decide which is the dominant policy: whether one policy compared to another is directly as opposed to tangentially relevant, or should be seen as the one to which the greater weight is required to be given.'"
(vi) Therefore, where there are discrete strands of planning policy within a single Local Plan that pull in different directions in a particular case, the planning authority must balance them, giving each the weight it considers appropriate and thus determining which policy, if any, is dominant; and decide whether, looking at the Local Plan as a whole, the proposal is or is not in accordance with it. However, even if it decides that the development is not in accordance with the plan, the authority may still decide that other material considerations outweigh that fact. In relation to these issues, no particular process is mandated as appropriate: so long as the decision-makers (a) identity and engage with the relevant policies in the development plan, properly understood and considered as a whole and (b) pay proper regard to the statutory priority given to the development plan (City of Edinburgh Council v Secretary of State for Scotland  1 WLR 1447 especially at page 1459H-1460D, as recently considered by me in R (Hampton Bishop Parish Council) v Herefordshire Council  EWHC 3947 (Admin) at - 130]).
(vii) Each local planning authority delegates its planning functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. An officer's report for a planning committee is not to be construed with the same exegesis as a statute. It is written by planning officers for members of planning committees, and therefore designed to be considered by a knowledgeable readership, aware of the planning policy context and of course the local context. The questions to be asked are whether the author properly identified the important planning issues to be considered, and whether overall he fairly identified the material matters bearing upon those issues, to enable the decision makers in the committee to weigh the competing public and private interests involved, and come to an appropriately informed decision (R (Zurich Assurance Ltd trading as Threadneedle Property Investments) v North Lincolnshire Council  EWHC 3708 (Admin) at , and the cases referred to therein). With regard to such reports, in the absence of contrary evidence, where a recommendation is adopted, it is a reasonable inference that members of the planning committee follow the reasoning of the report.
"In Wales, sustainable development means enhancing the economic, social and environmental wellbeing of people and communities, achieving a better quality of life for our own and future generations:
In ways which promote social justice and equality of opportunity; and
In ways which enhance the natural and cultural environment and respect its limits - using only our fair share of the earth's resources and sustaining our cultural legacy.
Sustainable development is the process by which we reach the goal of sustainability."
"The goal of sustainability" is defined in a policy document adopted by the United Kingdom Government and the devolved administrations in Scotland, Northern Ireland and Wales, "One Future: Different Paths", launched in March 2005, as "to enable all people throughout the world to satisfy their basic needs and enjoy a better quality of life without comprising the quality of life of future generations."
"All development proposals must demonstrate how positive economic, social and environmental impacts will be achieved and adverse impacts minimised."
"All key issues apply.
The Strategic Policy will contribute towards achieving objectives A, B, C, D and J.
The following General Policies provided more detailed guidance on this Strategic Policy: GN1-GN4, GN33-GN38."
"5.6 The planning system provides for a presumption in favour of sustainable development and national planning policy provides a definition of sustainable development in Wales. The overarching aim of the [LDP] is to ensure that Sustainable Development is achieved. This means ensuring that the types of development that take place are appropriate for their location and built and designed in such a way as to achieve positive economic, social and environmental impacts. Detailed policies such as the General Policies GN1 to GN4 and GN33 to GN38 of the [LDP] will be critical in ensuring that this Strategic Policy is met. These policies focus on ensuring that proposals are appropriate for different locations, that the design achieves safe, attractive and inclusive environments which are sustainable and optimise energy use and efficiency and incorporate energy technologies where feasible, whilst addressing landscaping and infrastructure requirements of any development.
5.7 The delivery of zero-carbon development and wider use of low-carbon and no-carbon technology in new building is being driven by Government targets and associated changes to the Building Regulations... This policy is complementary to these initiatives, which in combination will help to deliver new development that is sustainable."
It is clear from this that (i) "sustainability" in this context requires, and is dependent upon, an assessment of whether, on the basis of all the material factors, a proposed development is appropriate and acceptable in planning terms, i.e. that overall it achieves positive economic, social and environmental impact; and (ii) a major driver towards the goal of sustainability is renewable energy.
"The essential requirements of people who live and work in the countryside will be met whilst protecting the landscape and natural and built environment of Pembrokeshire and adjoining areas...".
"There are many challenges in maintaining a strong natural and historic environment whilst ensuring that other key objectives in the [LDP] such as providing housing or building on the County's strategic location for energy and port related development are met. General Policies on development will ensure that these challenges are managed successfully."
"Development will be permitted where the following criteria are met:
2. It would not result in significant detrimental impact on local amenity in terms of visual impact, loss of light or privacy, odours, smoke, fumes, dust, air quality, or an increase in noise or vibration levels;
3. It would not adversely affect landscape character quality or diversity, including the special qualities of the Pembrokeshire Coast National Park and neighbourhood authorities;..."
It is noteworthy that paragraph 2 requires an absence of a significant adverse impact in respect of the identified matters, and paragraph 3 only any adverse impact in respect of the further identified matters. The purpose of the policy is clearly set out in paragraph 6.1:
"The purpose of this policy is to provide a framework for evaluation of potential development impacts. This will be used in conjunction with other plan policies to determine whether the proposed development is appropriate."
"Development that affects sites and landscapes of architectural and/or historical merit or archaeological importance, or their setting, will only be permitted where it can be demonstrated that it would protect or enhance their character and integrity."
"Pembrokeshire has a rich and varied environment made up of architectural, historic and archaeological features that are integral to its quality and distinctiveness. The historic environment enhances quality of life, forging culture identity and community cohesion and is a major asset to Pembrokeshire's visitor economy. The policy builds on national policy, to draw attention to the scale and significance of these assets within Pembrokeshire and to protect, preserve and enhance these features and designations. It ensures that Pembrokeshire's historic environment including formally designated sites together with buildings and the features of local importance and interest, and their setting, are appropriately protected and enhanced. Development that may detrimentally affect the character or integrity of such areas will not be permitted."
"Development proposals should seek to minimise resource demand, improve resource efficiency and seek power generated from renewable resources, where appropriate. They will be expected to be well designed in terms offence apology use.
Developments which enable the supply of renewable energy through environmentally acceptable solutions will be supported."
"6.28 Pembrokeshire has significant potential to provide further energy from all renewable resources, building on its existing role as an energy centre. However, it lies outside the Strategic Search Areas for wind energy. This policy aims to encourage further use of renewables to produce energy, which will help to meet Government targets for generating power from renewable resources.
6.29 renewable energy technologies... include... onshore wind energy.
6.31 Landscape impact, alone and in combination, will be a material consideration in the evaluation of renewable energy proposals, with LANDMAP providing a valuable landscape analysis tool."
"However, given the relatively slender nature of the proposed turbines, which allow for a large degree of visual permeability, it is considered that the development would not be significantly detrimental to the area's historic environment in terms of visual impact. Furthermore the limited lifespan of any permission that may be granted (25 years) and the reversibility of the development, in terms of the removal of the turbines at the end of the expected life span, would limit any harm that would occur."
"6.46 It is considered that the location of the proposed development can satisfactorily accommodate wind turbines without any significant adverse impact on the landscape, the historic environment, the living conditions of local residents or on highway safety. Whilst there would be minor adverse impact on landscape character and quality, contrary to the requirements of criterion 3 of Policy GN1, the impact of the proposal would be environmentally acceptable as required by policy GN4. The limited adverse effects which have been identified - including the moderate impact of archaeological interests and the consequential conflict with Policy GN38 are outweighed by the scheme's contribution to renewable energy prediction.
6.47 Having regard to the LDP, national planning policy and all other material planning considerations it is considered that the proposed development is acceptable."
Ground 2: EIA
"The environmental sensitivity of geographical areas likely to be affected by development must be considered, having regard, in particular, to -
(c) the absorption capacity of the natural environment, paying attention to the following areas - ...
(viii) landscapes of historical, cultural or archaeological significance."
EIA: Failure to Consider Relevant Consideration
"It can therefore be concluded from the above that, whilst there are high elements of importance in the vicinity of the application site, in terms of the historic and cultural landscape, the general area is characterised by a landscape of moderate importance."
"The site of approximate 2km from the boundary of Pembrokeshire National Park. There are a number of Scheduled Ancient Monuments within the vicinity of the Site, the closest being approx 100m to the north. There are also Listed Buildings in the area (Tall Trees approx 600m to the west and St Elidyr's Church approx 1 km to the south west). Despite the existence of those environmentally sensitive sites, it is considered that the nature and scale of the proposed turbine would not cause significant environmental impacts sufficient to trigger its categorisation as an EIA development."
Mr Harwood accepts that that might adequately deal with the setting of the monuments; but, he submits, it fails to consider at all the effects of the historical, cultural and archaeological landscape.
"... I think it is important to bear in mind the nature of what is involved in giving a screening opinion. It is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all. I think it is important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term 'screening opinion"'.
EIA: "Likely Significant Effect" Test
"I considered that I had sufficient information to be able to screen the proposed development before me. The reference to the potential for an LVIA to be provided was simply an acknowledgement that further information would be provided in order to determine the application for planning permission."
EIA: Internal Inconsistency
"Finally, it is not considered that the proposal is unusually complex or would result in potentially hazardous environmental effects and is of not more than local importance, the magnitude of the potential impact not being considered to be of a scale which would affect a significant geographical area or population. Therefore, it is concluded that the proposal would not have any significant environmental effects."
(i) Paragraph 3 stated that "it is not considered that the proposal is unusually complex"; but the accompanying checklist set out the following questions and answer:
"A3. Will the effect be unusual in the area or particularly complex? Yes, LVIA would confirm impact."
Mr Harwood submitted that Circular 11/99 suggests that the terms "unusually complex" and "particularly complex" are used synonymously; there is thus an internal inconsistency here.
(ii) The opinion says that the project is not "of a scale which would affect a significant geographical area"; however, the screening checklist says:
"A2. Will features be out of scale with the existing very environment? Yes, turbines would be larger than existing natural features within landscape.
A4. Will the effect extend over a large area? LVIA would confirm extent of impact."
(iii) The opinion states that the project would not affect a "significant population"; but the checklist says:
"18. Is the project in a location where it is likely to be highly visible to many people? Yes, the site occupies a prominent location. LVIA would assess the visual impact.
A6. Will many people be affected? Potentially.
A7. Will many receptors or other types (fauna and flora, business, facilities) be affected? Potentially."
(i) With regard to the checklist answer A3, the affirmative was in respect of the development being unusual in the area, not particularly complex. Mr Allen confirms that that was what he intended by that answer (19 February 2014 Statement, paragraph 16).
(ii) With regard to checklist answer A2, Mr Taylor submitted that the fact that the turbines were larger than existing natural features was not logically inconsistent with the proposition that the project is not "of a scale which would not affect a significant geographical area"; and Mr Allen confirmed that he too saw, and intended, no inconsistency (19 February 2014 Statement, paragraph 17). Checklist answer A4 (and its reference to the LVIA) has been sufficiently covered by the course of my dealing with the previous sub-ground.
(iii) With regard to checklist answers 18, A6 and A7, Mr Taylor submitted, again, that the fact that the development is likely to be visible to many people is not logically inconsistent with the proposition that, in terms of significant effects on the environment for EIA purposes, the project would not affect a "significant population"; which is again supported by the evidence of Mr Allen as to how he considered matters (19 February 2014 Statement, paragraph 19). Mr Allen concluded (at paragraph 20):
"It was my view that whilst the proposed turbines had the potential to be visible and seen by many people, the likely magnitude of impact would not be significant. This is due in part to the site being located in the countryside, not in close proximity to any large population centres and also due to a large proportion of the views of the turbines being distance views within which the appearance of the structure is not likely to have a significant effect. I thus considered that the magnitude of the impact was likely to be low and that, while they may have adverse impact, the turbines would not have a significant adverse impact. The fact that something may be visible to a large population does not mean that it will necessarily by likely to cause a significant adverse impact upon landscape character or visual amenity."
Those were matters of planning judgment in relation to the screening opinion, and Mr Allen was entitled to draw the conclusions on them he in fact drew.